Frivolous mat law. New in this realm. tice inapplicable to some purposes discharged by similar machines. The question of degree is here, as elsewhere, the criterion of the validity of the grant. The fact Some matters apparently frivolous are yet proper subters within the jects of Patent grant, as conducing to public convenience. One such is mentioned by Mr. Rendel before the Committee in 1851." "There was," he said, "an invention some years ago of a file, or rather two files placed at right angles to one another, for sharpening black-lead pencils instead of cutting them: that was patented, and I believe the Patentee sold the Patent for a very large sum of money. The public ran after it for a time and every man carried one of these things in his pocket." The invention must be new in this realm. of its publication in other countries is recognized by the Law only in the event of its forming the subject of a foreign Patent. In that case it is provided by the New Act that Letters-patent for such inventions are not to continue in force after the expiration of the foreign Patent. The old rule was more extensive. In the Journals of the House of Commons in 1621 we find, "Sir E. Coke reporteth the Patent for Glasses. The consideration faileth, for no new invention is proved by certificates from divers countries and by three witnesses vivâ voce." Difficult to determine amount of public in. formation. To determine what is, as regards public use, a "new manufacture," involves a very difficult consideration, viz., what amount of information the public may be said to possess upon any particular branch of trade. On the objection of want of novelty to Zinck's Patent (1812 verdigris), it being proved that an article n Qu. 2532. • Beard v. Egerton (1849), photographs, 8 C. B. 207; Brown v. Annandale, 8 Cl. & Fin. 437; Lewis v. Marling, Web. P. R. 495 (previous use in America). P 16 & 16 Vict. c. 83, s. 25. Wood v. Zimmer (1813), 1 Holt, N. P. C. 58. precisely similar had been sold under another name, Gibbs, C. J., remarked, "Some things are obvious as soon as they are made public; of others the scientific world may possess itself by analysis, some inventions almost baffle discovery. But to entitle a man to a Patent, the invention must be new to the world; the public sale of that which is afterwards made the subject of a Patent, though sold by the inventor, only makes the Patent void." There are two modes in which "publication" of an Publication. invention may occur: by description in lectures, books accessible to the public, &c., or employment in actual practice of the invention. With regard to the former some qualifications are requisite from the peculiarity of the case. Formerly inventions originated with those engaged in manufactures, and were little known beyond the factory, or at most the trade in which they were employed. Manufacturing art, however, at the present day may be said to have a popular literature of its own. Here, as in every other department of useful knowledge, the press is in advance of the age, and periodicals devoted to chemical and mechanical science, not content with recording the results effected the Patentee, discuss the principle involved in his discovery, and speculate on the still further development of his idea. The intelligence of such writers is, therefore, no fair index of popular apprehension. If suggestions from such a source were suffered to discredit all Patents subsequently obtained for inventions carried out upon the principles they lay down, it is evident very few could be maintained. In some instances the practice of such suggestions is so easy as to recommend itself at once to public use; in others the value of them can be ascertained only after long and expensive experiments; and, but for the enterprise of the Patentee, would probably Encyc. Met. viii. 161. r Publication in specification of former Patent. User. Experiment. remain for some length of time without any practical results. The practical questions that arise under this head are what amounts to a description of the invention, and what publicity is requisite to constitute publication." The description of the substance of the invention in a Specification of a prior Patent was held to vitiate a Patent before that document was practically accessible to the public, Huddart v. Grimshaw; and à fortiori must be held to do so under the present system, which provides for their publication. In Stead v. Williams, the description of the invention (wood paving), as practised in a foreign country, in a book publicly circulated in England and lodged in the British Museum (Transactions of the Society of Arts, for 1833), was held to have deprived the subject of its qualification for Patent sealed 1838. In The Queen v. Walton," it was attempted to repeal a Patent granted in 1834 (improved cards for woolcarding), by producing a passage from the Journal of the Royal Institution, of 1826, but without effect. The extent of previous employment fatal to Patent Grants is termed "user." The amount requisite to constitute user varies with different subjects. If the previous employment of the invention was by way of experiment only, and the object for which the Patent was taken out was not attained, such experimental use of the invention will not prejudice a more successful competitor, who 'avails himself of his predecessor's discoveries and Tenant's case, Dav. Pat. Ca. 429; Makepeace v. Jackson, 4 Turn. 770; Barber v. Walduck, 1 Car. & P. 558; Bloxum v. Elsee, 1 Car. & P. 558. * (1803) Web. P. R. 87; Davies' Pat. Cas. 265. y 8 M., G. & Sc. 821; (1844) 12 L. J., N. S., C. P. 218; Hearteloup's case, Web. P. R. 553. z Web. P. R. 585. a Galloway v. Bleaden, Web. P. R. 521; (1839) Tindal, C. J. adds the last link of improvements, which brings the whole to perfection.b failure. The abandonment of an invention raises a strong pre- Presumption of sumption that it failed or was a mere experiment, or not reduced to beneficial practice, and is almost decisive that it was not complete and perfected; although, however, the fact of abandonment, provided it be shown to have attained completion, will not revive its claim to become good subject matter.f g In Galloway v. Bleaden, the experiments, on the Novelty. strength of which it was attempted, but without success, to impeach the novelty of the Patent, had been, according to the account of Mr. Field, who conducted them, perfectly successful, and conducted, as was contended, with such publicity as to deprive the Patentee of his title to the privilege. In 1833 he had made a model of a wheel with floats in a cycloidal curve, and left it for a week at the Admiralty. At his factory he showed it to all persons who wished to see it, and to any persons concerned in steam vessels. In the same year he lodged a caveat at the Patent Office, but took no steps towards preventing the Patent granted in 1835 to the plaintiffs, who maintained an action for infringement of it, the proceedings of Mr. Field not being deemed sufficient to deprive the subject matter of its patentable property. In Jones v. Pearce," wheels similiar in principle to Wood v. Zimmer, per Gibbs, C. J., 1 Holt, N. P. 58. d Minter v. Mower (1835), Web. P. R. 139. e Househill Co. v. Neilson (1843), Web. P. R. 692, n. ( p ). Househill Co. v. Neilson (1843), 9 Cl. & Fin. 788, per Lord Campbell; Jones v. Pearce (1832), carriages, Web. P. C. 122, Patteson, J.; Cornish v. Keene (1836), elastic fabrics, Web. P. C. 512, Tindal, C. J. 247. (1839) paddle wheels, Web. P. R. 521. See S. C. 1 M. & G. h (1832) carriage wheels, Web. P. R. 122, N. P., Patteson, J. Novelty. Conflicting dicta. Test of novelty in public use. those patented had been used publicly in a cart as early as 1814, for carrying heavy loads, during two years. The spokes, however, got bent, and the nave becoming broken, the cart was laid by. A milk cart, on the same principle, although much used, was subject to a similar defect. The deficiency was remedied by the subsequent Patent (1826), which was held good as being successful in remedying the defects in the experimental plan. The danger of applying a dictum in any one case upon this head, as a maxim applicable to the decision of all, is evident from the distinctly antagonistic positions assumed by not a few. Thus, in Cornish v. Keene, Tindal, C. J., remarked, with reference to abandoned' inventions,k that prior use to invalidate a Patent must be public and continuous; whereas, in Househill Company v. Neilson,TM the Lord Lyndhurst, L. C., remarked, "If use or trials have been made of it in the eye and in the presence of the public, it is not necessary that the public use of it should come down to the time when the Patent was granted. If it was discontinued, still that was sufficient evidence in support of the prior use to invalidate the Patent." The real test of the novelty of the invention for the purposes of a Patent was that left to the jury by Tindal, 1 (1832), Jones v. Pearce, Gods., 2nd ed. 28; Web. P. R. 124. * As instancing the neglect of Society to avail itself of a valuable principle, even when fully reduced into practice, and of the reappearance of inventions at distant epochs, we may notice two of the articles which excited such attention in the Great Exhibition of 1851-the mechanical reaper (Hussey's) and the revolver (Colt's). Both originated in England, but were not fortunate enough to attract attention. Of the latter invention, two specimens are at this moment in London, of so early a date as the reign of Charles I., one of which, labelled "a many times discharging petronel," identical in principle with Colt's, is exhibited in the Museum of the United Service Institution. (Transactions of the Society of Arts, Jan. 23, 1854.) |